Category Archives: Federal Officer Jurisdiction

Case Remanded to State Court as Defendants Could Not Use the Federal Officer Removal Statute Where the Plaintiff Expressly Disclaimed Any Naval Asbestos Exposure U.S. District Court for the Southern District of Florida, May 6, 2016

Plaintiff Richard Batchelor, a former employee of Florida Power & Light Company who was diagnosed with terminal mesothelioma after he was exposed to and inhaled asbestos fibers from asbestos-containing products manufactured, sold, supplied, distributed, or controlled, by the defendants, sued in the Circuit Court for the 11th Judicial District in and for Miami-Dade County Florida alleging three causes of action; (i) negligence; (ii) strict liability; and (iii) loss of consortium. Following Batchelor’s deposition, during which he testified that he served in the U.S. Navy and,…

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Fourth Circuit Upholds Summary Judgment on Substantial Factor Causation and Affirms Denial of Remand Based on Federal Officer Jurisdiction U.S. Court of Appeals for the Fourth Circuit, May 6, 2016

The U.S. Court of Appeals for the Fourth Circuit issued an opinion in two consolidated appeals upholding the granting of summary judgment to defendants CBS Corporation, General Electric Corporation (GE), MCIC (local insulation contractor), Paramount Packing & Rubber Company, Phelps Packing & Rubber Company, SB Decking, Inc., Wallace & Gale Asbestos Settlement Trust (local insulation contractor), and Foster-Wheeler Energy Corporation. The two consolidated cases involved alleged exposures to dust asbestos-containing products manufactured, supplied, or installed by the defendants at Baltimore, Maryland area shipyards. On appeal,…

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Case Remanded Where GE Failed to Satisfy Requirements of Federal Officer Removal Due to Plaintiff’s Specific Disclaimer of No Naval Asbestos Exposure U.S. District Court for the Southern District of West Virginia, Charleston Division, April 29, 2016

In this case, the plaintiff claimed that he was exposed to asbestos and contracted mesothelioma from products allegedly manufactured, supplied, installed, and/or distributed by numerous defendants. The plaintiff asserted in the complaint that he served in the U.S. Navy from 1962–66 but provided the disclaimer that the “[p]laintiff was not exposed to asbestos and is not bringing any claim for exposure to asbestos-containing products during Plaintiff’s service in the Navy.” One of the defendants, General Electric Company (GE), removed the case to the U.S. District…

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Defendant’s Failure to Warn Boilermaker Employees in the Shipyard Itself Prohibited Federal Contractor Defense U.S. District Court for the District of Maryland, April 20, 2016

The decedent in this case died of mesothelioma and his representatives filed an action in state court. Defendant Foster Wheeler removed this case to federal court under the officer removal statute. The plaintiff moved to remand, which the court granted. The plaintiffs alleged exposure during the decedent’s work at Bethlehem Steel Sparrows Point Shipyard, while working as a boiler maker from 1948-1970s. Foster Wheeler removed on the basis that it was acting under an officer or agency of the United States, because it made boilers…

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Federal Court of Appeals Remands Case for Determination of Colorable Federal Defenses Alleged by Shipyard U.S. District Court of Appeals for the Fifth Circuit

In this case, the plaintiffs’ decedent claimed exposure to asbestos containing thermal insulation while working at the Avondale Shipyard in Louisiana as laborer and painter from 1948-1996. The shipyard at issued worked on contracts for the federal government. The defendants removed the case under federal officer removal and took the position that removal was proper since the government, through Navy inspectors, was involved in the building of the ships and had control of safety issues during construction. The plaintiffs, on the other hand, argued that…

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Case Against Crane Remanded to State Court Based on Lack of Evidence of the Exercise of Government Discretion Under the Federal Officer Removal Statute U.S. District Court for the Eastern District of Louisiana, December 23, 2015

In this case, the plaintiff alleged asbestos exposure from various sources, including from his time aboard Naval vessels during the Korean War. Defendant Crane removed the case to federal court pursuant to 28 U.S.C.1442(a)(1), the federal officer removal statute.  The plaintiff moved to remand the case, arguing that Crane did not meet the standard to remove under the statute. In opposition to the remand, Crane submitted a 2011 affidavit from one of its officers stating that “the manufacture of equipment for use on Navy vessels…

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Federal Court Grants Remand to Madison County Based on Plaintiff’s Waiver of Any Claims Related to His Military Service U.S. District Court for the Southern District of Illinois, November 23, 2015

In this case, the plaintiff originally filed the action in the Third Judicial Circuit, Madison County, Illinois alleging exposure to asbestos as an aircraft mechanic, helicopter mechanic, and laborer at various locations throughout the United States between 1958 and 2006. The plaintiff’s work on helicopters was while he served in the U.S. Army.  Defendant Boeing removed the case to federal court based on the federal officer removal statute. The plaintiff moved for a remand based on his previously filed waiver of all claims related to…

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In Severing Late Third-Party Claims Against Defendant with Federal Defenses, Court Remands Case That had Been Litigated in State Court for Almost Two Years U.S. District Court for the Western District of Kentucky, Louisville, October 26, 2015

In this case, an action was brought in Jefferson Circuit Court asserting state-law claims for the asbestos exposure and death of the decedent, Glen Brown. Defendant General Electric Company (GE) was granted leave to assert a third-party claim against Tennessee Valley Authority (TVA), who then removed the matter to federal court pursuant to 28 U.S.C. 1442(a)(1), the federal officer removal statute. The plaintiff moved to remand the matter and to sever GE’s claims against TVA. The court first looked at the severance of GE’s claims…

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Plaintiffs’ Motion for Leave to Amend Complaint to Delete Federal Question Neither Prejudicial Nor Futile Where Remaining Defendant’s Summary Judgment Motion Did Not Argue Federal Claims U.S. District Court for the Southern District of New York, October 19, 2015

The plaintiff was diagnosed with mesothelioma and filed suit against a sea of defendants in New York state court. After responding to interrogatories indicating that he was exposed to asbestos while in the Navy, Foster Wheeler timely removed this case to federal court based upon the federal government-contractor defense.  When the only defendant remaining was Crane,  the plaintiffs moved for leave to file a first amended complaint which would eliminate any federal claims or defenses.  At the time the paintiff moved for leave to amend,…

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Case Remanded Based on Dismissal and Settlement of Defendants with Federal Defenses U.S. District Court for the Southern District of Illinois, October 20, 2015

This case was originally filed in the Third Judicial Circuit in Madison County. The defendant, Crane Co., removed based on the Federal Officer Removal Statute 28 U.S.C. 1442(a)(1) and defendant General Electric Company (GE) joined in. The plaintiff moved to remand the case and GE was the only defendant to oppose. Prior to the court rendering a decision, GE was dismissed from the case and Crane settled. CBS Corporation then filed a notice of joinder or removal, which the court found untimely. The court granted…

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